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ADA 1990 and Beyond

At the beginning of the 21st Century, the National Council on Disability, in a report titled Promises to Keep, observed that the ADA had “begun to transform the social fabric of our nation.” It is certainly true that a lot has happened on the disability rights trail since the ADA was signed in 1990 and the ADA regulations were issued in 1991; many of those developments have been very positive and some have been problematic. Like most laws, the ADA was not self-effectuating. Without effective implementation and enforcement, the rights articulated in the statute would have remained merely words on paper. Progress toward, and shortfalls in, fulfillment of the ADA’s promise since its enactment will be assessed. Among other developments, enforcement activities by federal agencies and adjudications in the courts, and efforts to get the ADA back on the track when some unfortunate court decisions had derailed it in important ways will be examined. An overarching assessment will be made of the impact the ADA has had in the past three decades, looking at the various aspects of society it has touched, discussing the current state of the law and implementation, and evaluating prospects and strategies for the future. Such an assessment will help determine the extent to which the National Council was, and continues to be, correct in the hopeful view and aspirations it expressed for the ADA in Promises to Keep:

It has brought the principle of disability civil rights into the mainstream of public policy. The law, coupled with the disability rights movement that produced a climate where such legislation could be enacted, has impacted fundamentally the way Americans perceive disability. The placement of disability discrimination on a par with race or gender discrimination exposed the common experiences of prejudice and segregation and provided clear rationale for the elimination of disability discrimination in this country. The ADA has become a symbol, internationally, of the promise of human and civil rights, and a blueprint for policy development in other countries. It has changed permanently the architectural and telecommunications landscape of the United States. It has created increased recognition and understanding of the manner in which the physical and social environment can pose discriminatory barriers to people with disabilities. It is a vehicle through which people with disabilities have made their political influence felt, and it continues to be a unifying focus for the disability rights movement.


Steps After Enactment: ADA Regulations and Administrative Enforcement

Soon-after-enactment efforts to influence the interpretive gloss (spin) on the ADA, including articles written by members of the ADA Legal Team for a Temple Law Review symposium, and another I wrote for the Harvard Civil Rights – Civil Liberties Law Review will be presented, with emphasis on nondiscrimination standards governing public accommodations and leading disability rights attorney Tim Cook’s forceful advocacy for the ADA’s integration mandate that would prove to be vitally important. Accessibility standards issued by the Architectural and Transportation Barriers Compliance Board, and the issuance and content of ADA regulations promulgated by the Department of Justice, Equal Employment Opportunity Commission, the Department of Transportation, and the Federal Communications Commission will be reviewed. Impressively, the ADA regulations were issued by the one-year post-signing deadline and their content was generally in sync with the content of the statutory language. Features of the regulations, subsequent failures in leadership and policy pronouncements by ADA regulatory entities relating to enforcement, and shortcomings that were identified in a 2000 NCD report Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act will be identified.

Some Positive Court Decisions

As the courts began to interpret and apply the ADA, the results were mixed. Among favorable decisions, the U.S. Supreme Court (1) upheld the ADA's integration requirement and applied it to prohibit unnecessary segregation of people receiving residential services from the states; (2) held the ADA applicable to protect prisoners in state penal systems; (3) held that the ADA prohibits discrimination by a dentist against a person with HIV infection; and (4) ruled that the ADA required the PGA to allow a golfer with a mobility impairment to use a golf cart in tournament play as a "reasonable modification." Perhaps the most influential of these was the U.S. Supreme Court’s 1999 landmark decision in Olmstead v. L.C. In that case, the Court ruled that the unjustified segregation of people with disabilities is a form of unlawful discrimination under the ADA, and that people with disabilities have a qualified right to receive state-funded supports and services in the community rather than institutions whenever: (1) the person's treatment professionals determine that community supports are appropriate; (2) the person does not object to living in the community; and (3) the provision of services in the community would be a reasonable accommodation when balanced with other similarly situated individuals with disabilities. In conjunction with a “New Freedom Initiative,” on June 18, 2001, President George W. Bush issued an Executive Order on “Community-Based Alternatives for Individuals with Disabilities,” in which he committed his administration to implementation of the Olmstead decision, a commitment that was embraced by the Obama Administration as well. The details and implications of the Olmstead ruling and the other major positive ADA decisions will be described and analyzed.

Problems in the Courts

The initial ADA decisions of the lower courts were somewhat mixed but pretty good on balance. Over time, however, some problematic lines of cases began to develop, particularly regarding the breadth of coverage of the law. Beginning with a decision in 1999, the Supreme Court made a sharp turn toward restrictive interpretation of the definition of disability under the Act, a trend which escalated in later decisions of the Court. The High Court also made other negative interpretations of ADA standards and procedures. Major unfavorable rulings, their origins and impacts, and a series of “policy briefs” I developed for NCD to chronicle the Supreme Court precedents will be described. How NCD’s concerns about the problematic court decisions led the Council to convene a series of stakeholder input sessions to provide advice on what the Council might do to get the ADA back on track will be identified and discussed.

Righting the ADA & the ADA Amendments Act

The restrictive ADA court decisions prompted disability advocates, spearheaded by the National Council on Disability, to call for amendatory legislation. NCD asked me to prepare a report describing the problems created by the Supreme Court’s ADA decisions and offering legislative proposals for addressing those problems. The result was a report called Righting the ADA. A summary of the report, will be provided, with a particular focus on the remedial legislative proposals consolidated into a single draft bill, the ADA Restoration Act. The proposed bill provided the basis for ADA Restoration Act bills introduced in the 109th and 110th Congresses, and, after some legislative negotiations, culminated in the ADA Amendments Act of 2008 (ADAAA), which made several changes to the ADA seeking to ensure a broad interpretation of disability under the Act.

Impact of the ADA Amendments Act

The ADAAA took effect on January 1, 2009. As the judicial system began to hear and decide disability nondiscrimination lawsuits raising questions under the new law, NCD recognized a need for review and analysis of court decisions to ascertain whether the ADAAA was achieving its goals. Accordingly, NCD asked me to analyze case law under the ADAAA and produce a paper reporting findings as to whether the ADAAA was accomplishing its objectives, and providing recommendations for improvements or corrective action. The report, A Promising Start, was issued in July 2013 and presented 23 findings providing both a summary of the overall results of the court decisions and a detailed legal analysis of how the courts have responded to major revisions made by the ADAAA. These findings and recommendations will be summarized and discussed to convey a sense of how the corrected ADA is working.

Overall Impact of the ADA to Date

A big picture analysis of the impact of the ADA since its enactment will be provided, examining a variety of areas and activities that the statute has affected, including: (1) buildings, facilities, and thoroughfares; (2) mass transportation; (3) telecommunications; (4) state and local government services; (5) public accommodations; (6) residential, treatment, and care services; (7) hiring practices; (8) HIV discrimination; and (9) the legal status of people with disabilities internationally.

Current and Future Outlook

Present-day issues, problems, and opportunities in regard to equal rights for people with disabilities; and prospects for the near and distant future, expanding and extrapolating on an article I penned on “Restoring the ADA and Beyond: Disability in the 21st Century,” will be described and analyzed.